Forewarned: Sports, Torts, and New York's Dangerous Assumption

Pomerance, Benjamin P., Albany Law Review

On the morning of October 19, 2002, three friends set out to play a round of golf at a nine-hole course on Long Island. (1) At least two of the men--Dr. Azad Anand and Dr. Anoop Kapoor--were experienced golfers. (2) In fact, they often played together. (3) Yet this day would prove to be the final round of their playing partnership. It would also open the door to yet another round of a battle that has been fought in the New York State court system for decades--a battle that has consistently ended with courts barring recovery for injured plaintiffs under the assumption of risk doctrine rather than taking a more equitable approach under the principles of comparative negligence. (4)

The damage occurred on the first hole. (5) Each man played his first two shots. (6) Then the three players separated and walked to the differing spots where their respective golf balls had landed. (7) Dr. Anand's ball had landed further down the fairway from where Dr. Kapoor's ball had landed. (8) Exactly how much further would later become an object of dispute. (9) Balram Verma, the third member of the threesome that day, would eventually testify that Dr. Anand's ball was approximately twenty feet ahead of Dr. Kapoor's ball. (10) Dr. Kapoor would disagree, testifying that Dr. Anand was standing "at a considerably greater distance in front of him" and claiming that Dr. Anand was positioned at an angle "approximately 60 to 80 degrees" away from the area where Dr. Kapoor planned to hit his shot. (11)

Where Dr. Kapoor intended to hit the ball and where the shot actually ended up, however, proved to be two extraordinarily different locations. (12) When he struck the ball, Dr. Kapoor was aiming toward the green, perhaps even hoping to pick up some lucky spin that would send the ball careening into the hole. (13) He missed miserably. (14) Yet his shot did reach a target, albeit an unintended one. Had Dr. Anand's left eye been the objective of the shot, Dr. Kapoor would have recorded a hole-in-one. (15)

A golf ball weighs no more than 1.620 ounces and has a diameter of not less than 1.680 inches. (16) Plummeting out of the sky at an alarming rate of speed, the compact spheroid carried with it the ability to cause some significant damage. (17) When it struck Dr. Anand in his left eye, it penetrated the outer membranes of the eye, causing a severe injury known as a "ruptured globe." (18) The ball also dislodged Dr. Anand's retina, tearing it away from its underlayer of support tissue. (19) Medical assistance proved to be of no avail. (20) The ultimate verdict was severe: as a consequence of this accident, Dr. Anand will forever be blind in his left eye. (21)

In an act that likely damaged their friendship as rapidly as the golf ball damaged Dr. Anand's eye, Dr. Anand subsequently brought a lawsuit against Dr. Kapoor, claiming that Dr. Kapoor had been negligent in his actions on the golf course that day, and that his negligence had caused Dr. Anand's injuries. (22) At trial, Dr. Anand claimed that he never heard Dr. Kapoor shout any warning when he noticed that his shot was making a beeline for his playing partner's head, (23) a violation of a well-established rule of golf requiring that a player shout a "word of warning" (traditionally the word "Fore!") (24) if he "plays a ball in a direction where there is a danger of hitting someone." (25) Balram Verma, the third member of the playing party, agreed that he also heard no word of warning from Dr. Kapoor. (26) However, Dr. Kapoor disagreed, arguing that he "shouted out a warning" to Dr. Anand as soon as he "realized that the ball was headed in [Anand's] direction." (27)

In addition, Dr. Kapoor testified that he saw nobody standing between his ball and the hole that was the intended target of his shot. (28) However, Dr. Kapoor also acknowledged that he did not know where either Dr. Anand or Balram Verma were standing at the time he hit the shot. (29) His failure to determine the positions of his playing partners--or anyone else on the course--prior to hitting the shot violated provisions in The Rules of Golf, the United States Golf Association's official publication detailing the rules of the game, that directs golfers not to play a shot until they are certain that players in front of them are "out of range. …

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